State v. Anderson , 2014 Ohio 4699 ( 2014 )

[Cite as State v. Anderson, 2014-Ohio-4699.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
DWIGHT ANDERSON
Defendant-Appellant
Appellate Case No. 26056
Trial Court Case Nos. 2012-CR-3500
2012-CR-3500/1
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 24th day of October, 2014.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery
County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DAVID. M. MORRISON, Atty. Reg. No. 0087487, P.O. Box 750383, Dayton, Ohio 45475
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Dwight Anderson, appeals from the 14-month prison
sentence he received in the Montgomery County Court of Common Pleas after pleading guilty to
one count of possessing heroin. Anderson contends the trial court erred in failing to sentence
him pursuant to the terms of a negotiated plea agreement that was previously accepted by the trial
court. For the reasons outlined below, we will reverse the judgment of the trial court and
remand the matter so that the trial court may either sentence Anderson according to the plea
agreement or allow Anderson to withdraw his guilty plea.
{¶ 2} On December 4, 2012, Anderson was indicted for one count of possessing heroin
in an amount greater than one gram but less than five grams in violation of R.C. 2925.11(A), a
felony of the fourth degree. Anderson initially pled not guilty to the charge, but later changed
his plea to guilty after reaching a negotiated plea agreement with the State. Pursuant to the plea
agreement, Anderson agreed to plead guilty as charged, and in exchange, the State agreed that if
he were sentenced to prison, the sentence would be capped at 12 months. The State also agreed
to proceed to sentencing after April, 20, 2013, the due date for the birth of Anderson’s first
grandchild.
{¶ 3} The trial court was informed of the plea agreement at the March 11, 2013 plea
hearing. After the plea agreement was stated on the record, the trial court said that: “Other than
the cap of the potential penalty, this is a felony of the fourth degree. It carries maximum 18
months. By agreement, it’s capped at 12 months.” Plea Hearing Trans. (Mar. 11, 2013), p. 4.
Thereafter, the trial court accepted Anderson’s guilty plea, ordered a presentence investigation
report, and scheduled a sentencing hearing for April 22, 2013.
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{¶ 4} On April 19, 2013, defense counsel filed a motion to continue the sentencing
hearing for the reason that Anderson was allegedly admitted to the Miami Valley Hospital for
surgery. The trial court did not rule on the motion and held the sentencing hearing as scheduled.
When Anderson failed to appear at the hearing, defense counsel informed the trial court that
Anderson left him a voice message saying that he was in the hospital; however, counsel
explained that he had been unable to confirm Anderson’s admittance. As a result, the trial court
ordered a capias for Anderson’s arrest. Eight months later, Anderson was apprehended and
brought before the trial court.
{¶ 5} On December 30, 2013, Anderson appeared for sentencing. He claimed that he
previously did not appear at sentencing due to an unexplained “medical situation.” Thereafter,
the trial court sentenced him to 14 months in prison, suspended his driver’s license for 12
months, and ordered him to pay court costs. Neither the trial court nor the parties mentioned the
12-month sentencing cap, and Anderson raised no objection to his 14-month prison sentence.
{¶ 6} Anderson now appeals from his 14-month prison sentence, raising one
assignment of error for review. His sole assignment of error is as follows:
THE TRIAL COURT ERRED BY FAILING TO ABIDE BY THE TERMS OF
THE PLEA AGREEMENT NEGOTIATED BETWEEN MR. ANDERSON AND
THE STATE AND ACCEPTED BY THE TRIAL COURT.
{¶ 7} Under his single assignment of error, Anderson contends the trial court erred in
sentencing him to 14 months in prison instead of capping his sentence at 12 months as negotiated
in his plea agreement. He claims this was error because the trial court accepted the plea
agreement prior to his plea, did not forewarn him that the court was not bound to follow the
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agreement, and did not inform him that the agreement was conditioned on his appearance at the
sentencing hearing.
{¶ 8} As a preliminary matter, and as noted above, Anderson failed to raise the alleged
sentencing error before the trial court. “Ordinarily, a failure to bring an error to the attention of
the trial court at a time when the court could correct that error constitutes a waiver of all but plain
error.” State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 N.E.2d 372, ¶ 22 (2d
Dist.), citing State v. Wickline, 50 Ohio St.3d 114, 120, 552 N.E.2d 913 (1990). Plain error does
not exist unless the record indicates that Anderson’s sentence would clearly have been different
but for the error. Id. at ¶ 23, citing State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1987).
(Other citation omitted.)
{¶ 9} We have previously held that “[i]f the trial court accepts a plea agreement on the
record, it must honor it. If the trial court imposes anything other than the agreed-upon sentence,
the sentence is rendered void or voidable.” (Citation omitted.) State v. Arde, 190 Ohio App.3d
196, 2010-Ohio-5274, 941 N.E.2d 119, ¶ 18 (2d Dist.). This is the case because “ ‘[w]hen the
trial court promises a certain sentence, the promise becomes an inducement to enter a plea, and
unless that sentence is given, the plea is not voluntary.’ ” State v. Layman, 2d Dist. Montgomery
No. 22307, 2008-Ohio-759, ¶ 15, quoting State v. Bonnell, 12th Dist. Clermont No.
CA2001-12-094, 2002-Ohio-5882, ¶ 18. (Other citation omitted.) “ ‘Accordingly, a trial court
commits reversible error when it participates in plea negotiations but fails to impose the promised
sentence.’ ” Id.{¶ 10} “On remand for a breach of a plea agreement, two remedies are available,
depending on the circumstances of the case. * * * Either the trial court must sentence appellant in
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accordance with the plea agreement, or if it determines such a sentence is no longer appropriate,
it must allow appellant the opportunity to withdraw his guilty plea.” (Citations omitted.)
Bonnell at ¶ 23.
{¶ 11} In Layman, we “reluctantly” held that when a trial court accepts a negotiated
sentence, it is bound by that agreement even though the defendant fails to appear for sentencing
at the appointed time. Layman at ¶ 1. The defendant in Layman entered a plea of guilty to
breaking and entering after the trial court accepted a plea agreement providing that if a prison
sentence was imposed, it would not exceed seven months. Id. at ¶ 2. After pleading guilty, the
defendant’s bond was reduced and he was released from custody pending the sentencing hearing.
Id. The trial court did not warn the defendant of any consequences of failing to appear for
sentencing at the appointed time. Id. at ¶ 9.
{¶ 12} After his release, the defendant in Layman failed to appear for sentencing and a
capias was issued for his arrest. Layman, 2d Dist. Montgomery No. 22307, 2008-Ohio-759 at ¶
2. Three months later, the defendant was apprehended and sentenced to a prison term of ten
months. Id. The trial court stated that it was not bound by the earlier agreement to limit any
sentence to seven months because the defendant had failed to appear at the sentencing hearing as
scheduled. Id. The defendant appealed the trial court’s decision, and in relying on the Twelfth
District Court of Appeals’s decision in Bonnell, 12th Dist. Clermont No. CA2001-12-094,
2002-Ohio-5882, we reversed the trial court’s judgment and remanded the case for either
imposition of the originally accepted sentence or to allow the defendant to withdraw his guilty
plea. Layman at ¶ 20-21.
{¶ 13} We note that Bonnell involved a plea agreement providing that the defendant
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would not be sentenced to prison. Bonnell at ¶ 19. The trial court promised the same and did
not give the defendant any notice that it intended to deviate from the terms of the plea agreement.
Id. at ¶ 20. The Bonnell court explained that:
The analysis in cases such as this one centers on whether the defendant
was put on notice that the trial court might deviate from the terms of the plea
agreement and whether the defendant was given an opportunity to withdraw his
plea after receiving notice. See Warren v. Cromley (Jan. 29, 1999), Trumbull
Co. App. No. 97-T-0213. In this case, the trial court did not clearly state its
intention to deviate from the plea terms. See State v. Gastaldo (Sept. 21, 1998),
Tuscarawas App. No. 98AP010006 (trial court stated its intention to vary
sentence from the terms of original agreement); Cromley (trial court notified
defendant that it had a problem with recommendation of the state to return
weapons after it received investigation report). Nor did the trial court give
appellant the opportunity to withdraw his plea in light of the change from the
negotiated terms of the plea bargain. See State v. Willey, Washington App. No.
01 CA37, 2002-Ohio-2849 (no error occurred when trial court offered defendant
opportunity to withdraw his plea after informing him of its unwillingness to
abide by previous comments about sentencing).
We find reversible error occurred in this case because the trial court
explicitly promised appellant it would not sentence him to prison, then failed to
follow through on its promise at the sentencing hearing without stating its
intention and without giving appellant the opportunity to withdraw his plea.
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While the state argues that appellant was put on notice by the prosecutor’s
statements that a prison sentence may be appropriate, any statement by the
prosecution reflects on the state’s intention to comply with the plea bargain, not
the court’s intention.
Bonnell at ¶ 21-22.
{¶ 14} After a thorough review of the record, we conclude that Layman and Bonnell are
analogous to the instant case and that the trial court committed plain error in failing to honor
Anderson’s plea agreement, which the State concedes the trial court accepted.
{¶ 15} Here, the trial court specifically stated at the plea hearing that Anderson’s offense
“carries maximum 18 months” and “[b]y agreement, it’s capped at 12 months.” Plea Hearing
Trans. (Mar. 11, 2013), p. 4. In addition, the trial court did not advise Anderson that the court
might, under certain circumstances, deviate from the terms of the plea agreement. If the trial
court wanted to condition the plea agreement on Anderson’s appearance at sentencing, it should
have expressly imposed that condition. See Arde, 190 Ohio App.3d 196, 2010-Ohio-5274, 941
N.E.2d 119 (2d Dist.), at ¶ 19-20 (finding the trial court was bound to the plea agreement despite
the defendant failing to comply with the probation department, because the trial court did not
expressly condition the plea agreement on such compliance); see also State v. Gilroy, 195 Ohio
App.3d 173, 2011-Ohio-4163, 959 N.E.2d 19, ¶ 26-28 (2d Dist.) (finding the trial court was not
bound by the plea agreement because the defendant failed to comply with the trial court’s express
condition that defendant stay out of trouble between her plea hearing and sentencing). In this
case, no express conditions were imposed on the plea agreement, and Anderson pled guilty while
under the impression that he would receive no more than 12 months in prison. As a result, the
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trial court’s failure to honor the terms of the accepted plea agreement renders Anderson’s plea
less than voluntary and amounts to reversible error. See Layman, 2d Dist. Montgomery No.
22307, 2008-Ohio-759 at ¶ 15.
{¶ 16} Had the trial court honored the plea agreement, Anderson’s prison sentence
would have been no more than 12 months. Accordingly, Anderson’s 14-month prison sentence
would clearly have been different, but for the error. For this reason, the trial court committed
plain error and Anderson’s sole assignment of error is sustained.
{¶ 17} Having sustained Anderson’s sole assignment of error, the judgment of the trial
court is reversed and the matter is remanded for the trial court to either sentence Anderson in
accordance with the plea agreement or to allow him the opportunity to withdraw his guilty plea.
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FROELICH, P.J. and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
David M. Morrison
Hon. Timothy N. O’Connell